TATE v. HERNANDEZ

The opinion of the court was delivered by: ANDREW PECK, Magistrate Judge

REPORT AND RECOMMENDATION

To the Honorable Kimba M. Wood, United States District Judge:

Plaintiff's amended complaint in this action was filed as of
February 9, 2005. (Dkt. No. 4.)

Rule 4(m) of the Federal Rules of Civil Procedure provides:

Time Limit for Service. If service of the summons and
complaint is not made upon a defendant within 120
days after the filing of the complaint, the court,
upon motion or on its own initiative after notice to
the plaintiff, shall dismiss the action without
prejudice as to that defendant or direct that service
be effected within a specified time; provided that if
the plaintiff shows good cause for the failure, the
court shall extend the time for service for an
appropriate period. . . .

By Order dated May 10, 2005, I advised plaintiff that if the
complaint was not properly served under Rule 4(m), that is, by
June 9, 2005, I would recommend that the action be dismissed.
(Dkt. No. 9.) I also directed plaintiff to provide my chambers
with proof of service when made. (Id.) The regular and certified mail copies of that Order
were returned by the Post Office as unforwardable and unclaimed.

Plaintiff has not provided my chambers with proof of service on
defendants, and a review of the Court's docket sheet for this
action discloses that there is no affidavit of service on file
with the Clerk's Office. The U.S. Marshal's Office has advised my
chambers that they have not received any request from plaintiff
to perform service.

More than 120 days having passed from the filing of the amended
complaint, and the Court having advised plaintiff of his
obligations under Fed.R.Civ.P. 4(m), and there being no
indication that plaintiff has had the complaint served on
defendants, and plaintiff being represented by counsel, I
recommend that the Court dismiss plaintiff's complaint without
prejudice for failure to timely serve it pursuant to Fed.R. Civ.
P. 4(m). See, e.g., Thompson v. Maldonado, 309 F.3d 107,
110 (2d Cir. 2002).

Our website includes the main text of the court's opinion but does not include the
docket number, case citation or footnotes. Upon purchase, docket numbers and/or
citations allow you to research a case further or to use a case in a legal proceeding.
Footnotes (if any) include details of the court's decision.

Buy This Entire Record For
$7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.